Citation Nr: 1014887
Decision Date: 04/20/10 Archive Date: 04/30/10
DOCKET NO. 04-26 994 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for carcinoma of the
breasts.
2. Entitlement to service connection for lymphadema of the
left upper extremity, to include as being secondary to breast
cancer.
3. Entitlement to service connection for an acquired
psychiatric disorder, to include an adjustment disorder.
4. Entitlement to service connection for hypertension.
5. Entitlement to service connection for the residuals of
ovarian cysts.
6. Entitlement to an evaluation in excess of 10 percent for
cutaneous sarcoidosis associated with sarcoidosis, on appeal
from an initial grant of service connection.
7. Entitlement to a total disability evaluation based on
individual unemployability due to the appellant's service-
connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and her spouse
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The appellant served on active duty in the United States Air
Force from June 1972 to June 1992.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from rating decisions dated in June 2003 and May
2008 from the Department of Veterans Affairs (VA), Regional
Office (RO), located in Montgomery, Alabama. The May 2008
rating action granted service connection and assigned a 10
percent disability rating - the appellant has appealed the
disability rating that was assigned. The remaining issues
were denied in the initial rating decision of June 2003.
Subsequently, the appellant presented testimony before the
undersigned Acting Veterans Law Judge (AVLJ) via a
videoconference hearing in December 2009. A transcript of
that hearing was produced and has been included in the claims
folder for review.
Following a review of appellant's claim folder (volumes 1 -
7), it appears that the appellant has requested service
connection for a low back disability and she has asked that
her service-connected right hip replacement residuals be
assigned a rating in excess of 30 percent. These issues have
not been developed or adjudicated by the RO and they are
returned to the RO for appropriate action.
The issues involving breast cancer, hypertension, lymphadema
of the left upper extremity, cutaneous sarcoidosis, and a
total disability evaluation are addressed in the REMAND
portion of the decision below and they are REMANDED to the RO
via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. On December 17, 2009, prior to the promulgation of a
decision in the appeal, the VA received notification from the
appellant that she was withdrawing her appeal on the issue of
entitlement to service connection for the residuals of
ovarian cysts.
2. Although the medical evidence indicates that the
appellant underwent a tubal ligation, this procedure is not
manifestations or symptoms of a ratable disability, disease,
or disorder for VA compensation purposes.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a Substantive Appeal by
the appellant with respect to the issue of entitlement to
service connection for the residuals of ovarian cysts have
been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 &
Supp. 2009); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2009).
2. A disability, disorder, or disease manifested by a tubal
ligation procedure was not incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110, 5107 (West
2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Withdrawal of Issue
Under 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009), the Board
may dismiss any appeal that fails to allege specific error of
fact or law in the determination being appealed. A
Substantive Appeal may be withdrawn in writing at any time
before the Board promulgates a decision. 38 C.F.R. §§
20.202, 20.204(b) (2009). Withdrawal may be made by the
appellant or by his or his authorized representative, except
that a representative may not withdraw a Substantive Appeal
filed by the appellant personally without the express written
consent of the appellant. 38 C.F.R. § 20.204(c) (2009).
In December 2009, the appellant wrote a statement stating
that she was withdrawing her appeal with respect to the issue
involving ovarian cysts. It is apparent to the Board that
the appellant has withdrawn her appeal prior to the Board
issuing a decision on the merits of her claim. As the
appellant has withdrawn this appeal, there remain no
allegations of errors of fact or law for appellate
consideration. Accordingly, the Board does not have
jurisdiction to review the appellate issue and it is
dismissed.
II. Service Connection - Tubal Ligation
A preliminary point worth mentioning is that, since the issue
involving a tubal ligation procedure is being denied as a
matter of law, the duty-to-notify-and-assist provisions of
the Veterans Claims Assistance Act of 2000 (VCAA) do not
apply. See Manning v. Principi, 16 Vet. App. 534 (2002) (the
VCAA has no effect on appeal limited to interpretation of
law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2009). The VCAA does not apply
because the issue presented is solely of statutory and
regulatory interpretation and/or the claim is barred as a
matter of law in that it cannot be substantiated. See Smith
v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384
(Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See,
too, VAOPGCPREC 5-2004 (June 23, 2004).
Under 38 C.F.R. § 4.1 (2009), the term "disability" means
impairment in earning capacity resulting from diseases and
injuries and their residual conditions. See also Hunt v.
Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7
Vet. App. 439 (1995). The Board notes that a test result or
a procedure without a diagnosed or identifiable underlying
malady or condition or a residual, does not in and of itself
constitute a "disability" for which service connection may
be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282
(1999). A tubal ligation without any residuals is not, in
and of itself, a ratable disability for VA compensation
purposes. 61 Fed. Reg. 20440, 20445 (May 7, 1996). And
absent proof of a current disability, there can be no valid
claim. See McClain v. Nicholson, 21 Vet. App. 319, 321
(2007); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d
1328, 1332 (1997); Boyer v. West, 210 F.3d 1351, 1353 (Fed.
Cir. 2000); and Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).
Lacking legal merit, the claim for service connection for
this procedure must be denied. See generally Sabonis v.
Brown, 6 Vet. App. 426 (1994). If, however, the appellant
develops a residual disability that she believes is related
to the procedure, she is free to file a claim for service
connection for such disability.
ORDER
Service connection for the residuals of ovarian cysts is
dismissed.
Service connection for a tubal ligation procedure is denied.
REMAND
As noted on the front page of this action, the appellant
seeks service connection for a psychiatric disorder,
lymphadema, breast cancer, and hypertension. She has also
asked that a disability rating in excess of 10 percent be
assigned for her cutaneous sarcoidosis and that a TDIU be
assigned.
With respect to her service connection claims, she has
submitted written statements to support her claim and she has
provided testimony before the Board. In these statements,
she reports that she complained of pain, discomfort, and
possible lumps in her breasts while in service. She believes
that if she had received proper diagnostic care while in
service, her cancer (and the subsequent lymphadema) would
have been discovered earlier.
The medical evidence shows that the appellant has been
diagnosed as having breast cancer and lymphadema. However, a
VA doctor has not been asked to comment on whether any of the
claimed disorders are related to or caused by or the result
of the appellant's twenty years of active duty service. The
appellant is competent to provide testimony concerning
factual matters of which she has first hand knowledge (e. g.,
experiencing pain and feeling lumps in her breasts). See
Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Here,
despite the appellant's credible report of a continuity of
symptoms since service, to date she had not been afforded a
VA examination to assess whether the disabilities are related
to or had their onset in service.
VA has a duty to obtain a medical examination or opinion when
such examination or opinion is necessary to make a decision
on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). VA's duty
to provide a medical examination is not triggered unless the
record contains competent evidence of a current disability or
symptoms of a current disability, evidence establishing that
an event, injury, or disease occurred in service or a disease
manifested during an applicable presumptive period, and an
indication that the disability or persistent or recurring
symptoms of a disability may be associated with service or a
service connected disability. 38 U.S.C.A. § 5103A (West
2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here,
the current medical records indicate that the appellant now
suffers from the residuals of breast cancer and lymphadema.
The appellant asserts that the conditions are related to
service and that she experienced symptoms that were
indicative of each condition. As such, in accordance with
McLendon and the VA's duty to assist, the claim will be
remanded for the purpose of obtaining VA medical opinions
addressing whether these syndrome conditions are related to
or had their onset in service.
During the course of the appeal, the appellant's statements
concerning her psychiatric disability have changed. It
originally began as a claim for a psychiatric disorder with
the appellant claiming that it was related to service. She
has further clarified her contentions by stating that she
suffers from anxiety and depression because of her service-
connected skin disorder. A review of the claims folder
indicates that a medical examiner has not provided an opinion
as to whether the appellant's current mental disorder is
related to her service-connected skin disability or whether
it began in or was caused by her service or some other
service-connected disability. The Board finds that VA has a
duty to assist the appellant with her claim and that duty
includes making reasonable efforts to schedule her for an
appropriate medical examination to ascertain the etiology of
the claimed psychiatric disorder. Hence, this issue will
also be remanded so that additional development may occur.
The final service connection issue involves hypertension.
During the appellant's hearing, she reported that within six
months of her retirement from the Air Force, she was placed
on hypertensive medication. She indicated that it was her
belief that her hypertensive heart condition began prior to
her retirement and has continued to the present. A review of
the voluminous medical records contained in the claims folder
fails to reveal a medical opinion, either for or contrary to,
the appellant's assertions. Because there is a lack of
information with respect to this issue, the Board believes
that it should be returned to the RO/AMC so that thorough and
contemporaneous medical examination which takes into account
the records of prior medical treatment should be accomplished
so that the disability evaluation will be a fully informed
one in regards to the appellant's claim. See Hyder v.
Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet.
App. 121, 124 (1991). The Board deems that such an
examination should be performed because it may provide
additional insight into the appellant's claim.
With respect to the increased rating issue, as noted, the
appellant provided testimony before the undersigned AVLJ in
December 2009. During that hearing, the appellant averred
that since last being seen by VA medical personnel, her
service-connected cutaneous sarcoidosis had become more
severe. Pursuant to VA's duty to assist, VA will provide a
medical examination or obtain a medical opinion based upon a
review of the evidence of record if VA determines it is
necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i)
(2009). Where a claimant asserts that the disability in
question has increased in severity since the most recent
rating examination, an additional examination is appropriate.
See VAOPGCPREC 11-95 (1995); Caffrey v. Brown, 6 Vet. App.
377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). The
Board therefore finds that a comprehensive VA examination is
necessary to address the current level of the appellant's
skin disorder.
Because of the Board's above action, and since the
appellant's service-connected and increased rating claims may
impact her ability to obtain and maintain gainful employment,
the Board finds that the TDIU issue is inextricably
intertwined with actions that will occur as a result of this
particular Board action. Once the RO/AMC obtains additional
information concerning the issues addressed in the remand
portion of this action, then a determination should be made,
based on the complete record, as to whether the appellant's
service-connected disabilities truly prevent her from
obtaining and maintaining gainful employment.
Accordingly, the case is REMANDED to the AMC/RO for the
following actions:
1. The AMC/RO should schedule the
appellant for VA medical examinations
that cover breast cancer, hypertension, a
psychiatric disorder, and lymphadema.
The purpose of these examinations is to
ascertain whether the appellant now
suffers these disabilities and the
etiology of the found disabilities. The
claims folder, including any documents
obtained as a result of this Remand,
should be made available to the examiner
for review before the examination. The
examination report should consider all
findings necessary to evaluate the claim
and each examiner is asked to indicate
that he or she has reviewed the claims
folder.
Each examiner is asked to express an
opinion concerning the etiology of the
found disability. The examiner is asked
to state whether it is at least as likely
as not that any disorder is related to
any in-service disease or injury or to
her service in general or to a service-
connected disability/disorder. If the
appropriate examiner determines that the
disability is not related to the
appellant's military service or a
service-connected disability, the
examiner should specifically note why he
or she does not believe that the
condition was caused by the appellant's
service or a service-connected disorder.
Each examiner must provide a
comprehensive report including rationales
for all opinions and conclusions, citing
the objective medical findings leading to
the examiner's conclusions. If further
testing or examination by specialists is
required to evaluate the claimed
disorder, such testing or examination is
to be done before completion of the
examination report.
The results proffered by each examiner
must reference the complete claims
folders and any inconsistent past
diagnoses given. Also, it is requested
that the results of the examination be
typed or otherwise recorded in a legible
manner for review purposes.
2. The appellant should be scheduled for
a VA dermatological examination for the
purpose of determining the severity and
scope of her service-connected cutaneous
sarcoidosis. The examiner should be
provided with the appellant's claims
folder and a copy of this Remand, and
must review her medical history. Any
tests and studies deemed necessary should
be accomplished at this time.
a. The examiner should consider and
describe in detail all findings necessary
to evaluate the claim under the
regulations pertaining to skin disorders.
The examiner should ensure that he/she
provides comments on the type of
medications the appellant is taking/using
for treatment of the disorder, the amount
of skin that is affected by the
condition, any scarring that is the
result of the disorder, the number of
eruptions that occur per year.
b. The examiner should further discuss
whether the skin disability, and the
medications she takes for
treatment/control of the disorder, limits
a particular body part's range of motion
and movement. If this is the case, the
examiner should describe the limitation
of motion. Additionally, the examiner
should describe any functional loss and
pain on motion of the affected body parts
in accordance with DeLuca v. Brown, 8
Vet. App. 202 (1995).
c. Finally, the examiner must express an
opinion as to the impact of the
appellant's service-connected skin
disorder on her employability and whether
the disabilities produce repeated visits
to the doctor and/or hospitalization.
The examiner should take into account any
statements made by the appellant that
were obtained as a result of this Remand.
If this matter cannot be medically
determined without resort to mere
conjuncture, this should be commented on
by the examiner in the respective report.
A complete rationale for any opinion
expressed should be included in the
examination report. The claims folder
and this Remand must be made available to
the examiner for review before the
examination. The results proffered by
the examiner must reference the complete
claims folders and any inconsistent past
diagnoses given. Also, it is requested
that the results of the examination be
typed or otherwise recorded in a legible
manner for review purposes.
3. The RO/AMC should request that a
social and industrial survey be
undertaken by a social worker, in order
to elicit and set forth pertinent facts
regarding the appellant's medical
history, education and employment
history, and social and industrial
capacity. The social worker who conducts
this survey should identify those
activities that comprise the appellant's
daily routine. With regard to her
employability, the appellant should be
asked to provide the names and addresses
of businesses where he has worked and or
sought employment. Any potential
employment opportunities should be
identified. The claims folder must be
made available to the social worker in
conjunction with the survey as it
contains important historical data.
4. The RO/AMC should also make
arrangements with the appropriate VA
medical facility for the appellant to be
afforded a general medical examination to
determine the nature and extent of all
service-connected disabilities. All
indicated tests or studies deemed
necessary should be done. The claims
file, this REMAND, and treatment records
must be made available to, and be
reviewed by, the examiner in connection
with the examination. The examiner
should perform any tests or studies
deemed necessary for an accurate
assessment. The examiner should give
detailed clinical findings of any
symptomatology found.
Following examination, the examiner
should opine whether the appellant's
service-connected disabilities prevent
the appellant from being gainfully
employed.
The examiner must provide a comprehensive
report including complete rationale for
all conclusions reached in a legible
report.
5. Then, the AMC/RO should readjudicate
the issues on appeal. If the benefits
sought on appeal remain denied, the
appellant should be provided a
supplemental statement of the case
(SSOC). The RO/AMC is reminded that in
making a determination as to whether a
TDIU may be granted based on
extraschedular considerations, that the
RO/AMC must fully discuss why, or why
not, it is sending the claim to the
Director, VA Compensation and Pension.
The SSOC must contain notice of all
relevant actions taken on the claim for
benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response. Thereafter, the
case should be returned to the Board for
further appellate consideration. No
action is required of the appellant until
she is contacted by the RO/AMC.
The purpose of the examinations requested in this remand is
to obtain information or evidence (or both), which may be
dispositive of the appeal. Therefore, the appellant is
hereby placed on notice that pursuant to 38 C.F.R. § 3.655
(2009) failure to cooperate by attending the requested VA
examinations may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs